Application to set aside a juvenile conviction of CSC II; MCL 712A.18e(1) & (9); Comparing People v Rosen; A trial court’s discretion to grant or deny an application to set aside a conviction; People v Van Heck; Principle that courts speak through written orders & judgments, not oral pronouncements; Remand before a different judge; Swain v Morse

The court held that while the trial court’s decision to alter its initial oral ruling did not constitute error in and of itself, remand was appropriate because it made an error of law, and thereby abused its discretion, by denying respondent’s application to set aside his juvenile adjudication for CSC II. It also ordered that the matter be reassigned to a different judge. When respondent was 16 years old, he pled no contest to CSC II for allegedly engaging in sexual conduct with a 9-year-old when he was 14. He was adjudicated responsible, and in exchange for his no-contest plea, other charges were dismissed. When he was 18, he sought to set aside the CSC II adjudication. In its oral ruling the trial court found the statutory prerequisites for doing so were met. But it subsequently indicated it mistakenly believed it was required to grant the application if those prerequisites were met, and would have denied it if it had known it had discretion to do so. The trial court “found that the circumstances and behavior of respondent did not justify setting aside” his juvenile adjudication, and that doing so was contrary to the public welfare. It then entered a written order denying his application. The court first noted that because the trial court “never entered a written order granting” the application, it “was empowered to alter its initial oral ruling.” In addition, it “explained that its initial oral ruling was based upon the mistaken belief that it lacked the discretion to deny” the application. However, as in Rosen, the trial court abused its discretion because it denied the application based “solely upon the nature of respondent’s adjudication of responsibility for” CSC II. Notably, it did not “consider the circumstances and behavior of respondent from the date of [his] adjudication to the filing of the application, and . . . whether setting aside the adjudication was consistent with the public welfare.” Under Rosen, “‘[t]he nature of the offense itself does not preclude the setting aside of an offender’s conviction. That reason, standing alone, is insufficient to warrant denial of an application to set aside a conviction.’” Thus, remand for a proper determination, after considering “the circumstances and behavior of respondent since his adjudication and the public welfare, is necessary.” Finally, the court held that remand before a different judge was required based on the trial judge’s comments indicating “she would have substantial difficulty putting aside her previously expressed views” on the nature of CSC cases. Reversed and remanded.